Ontario Public Service Employees Union, Thibert, Jung and McGill v. Minister of Correctional Services, (1984) 2 O.A.C. 351 (DC)

• Judge: O'Driscoll, Gray and Sirois, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 13, 1984
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 351 (DC)

OPSEU v. Ont. (1984), 2 O.A.C. 351 (DC)

MLB headnote and full text

Ontario Public Service Employees Union, Thibert, Jung and McGill v. Ministry of Correctional Services

Indexed As: Ontario Public Service Employees Union, Thibert, Jung and McGill v. Minister of Correctional Services

Ontario Divisional Court

O'Driscoll, Gray and Sirois, JJ.

February 6, 1984.

Summary:

Three correctional officers were dismissed for allegedly using excessive force on an inmate. The officers grieved their dismissal. The Grievance Settlement Board heard the grievances. Before a decision was reached, the officers were charged, then acquitted, of assault causing bodily harm to the inmate. The Board subsequently dismissed each grievance. The officers and their union applied under the Judicial Review Procedure Act to quash the Board's decision.

The Ontario Divisional Court allowed the application.

Administrative Law - Topic 2145

Natural justice - Administrative decisions or findings - Failure to consider evidence - The Ontario Divisional Court held that where a trier of fact failed to consider all the evidence before making a decision, it resulted in a denial of natural justice - See paragraph 29 - The court quashed a decision of the Grievance Settlement Board, where the Board glossed over evidence, was selective in what it considered and failed to refer to, consider or evaluate evidence relevant to the credibility of the parties - See paragraphs 30 to 33.

Administrative Law - Topic 2613

Natural justice - Evidence and proof - Affidavit evidence - Grievors applied under the Judicial Review Procedure Act to quash a decision of the Grievance Settlement Board which dismissed their grievances - The application was grounded on the Board's alleged breach of natural justice by failing to consider essential evidence in making its decision - The Board kept no verbatim record of its proceedings - The Ontario Divisional Court allowed the grievors to file with the court, affidavit evidence and cross-examination to show the extent of the alleged error because the grievors would otherwise be denied access to the court - See paragraphs 25 to 28.

Labour Law - Topic 9356

Public service labour relations - Judicial review - Decisions of grievance appeal boards - Error of law - The Grievance Settlement Board dismissed grievances by three correctional officers who were dismissed for allegedly using excessive force on an inmate - The Board failed to determine how the subject incident started and thus failed to apply s. 7 of the Ministry of Correctional Services Act Regulations, which governed the use of force by correctional officers - The Ontario Divisional Court held that the Board erred in law and quashed the Board's award - See paragraphs 16 to 24.

Prisons - Topic 1068

Administration - Prison officers - Dismissal - Grounds - Use of excessive force - The Ontario Divisional Court held that the trier of the issue of whether a correctional officer used excessive force on an inmate must first consider whether the officer acted in self defence, then consider s. 7 of the Ministry of Correctional Services Act Regulations, which governed the issue - The court held that how the subject incident started and the inmate's propensity for violence and previous acts of violence were all relevant to the question of whether excessive force was used - See paragraphs 19 to 23.

Cases Noticed:

Sarabura v. Her Majesty the Queen in Right of Ontario as represented by the Attorney General (1981), 12 A.C.W.S.(2d) 241 (Div. Ct.), consd. [para. 15].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses Association and Nipawin Union Hospital and the Labour Relations Board of Saskatchewan, [1975] 1 S.C.R. 382, consd. [para. 18].

R. v. Scopelliti (1982), 63 C.C.C.(2d) 481, refd to. [para. 22].

R. v. Baxter (1976), 27 C.C.C.(2d) 96, refd to. [para. 23].

R. v. Bogue (1977), 30 C.C.C.(2d) 403, refd to. [para. 23].

Re Keeprite Workers' Independent Union et al. and Keeprite Products Ltd. (1980), 29 O.R.(2d) 513, consd. [para. 27].

Statutes Noticed:

Ministry of Correctional Services Act Regulations, O.R. 243/79, sect. 7(1) [paras. 11, 17, 19].

Counsel:

Ian Scott, Q.C., for the applicants;

Leslie M. McIntosh, for the respondent.

This application was heard before O'Driscoll, Gray and Sirois, JJ., of the Ontario Divisional Court, on January 13, 1984. The decision of the Divisional Court was delivered by O'Driscoll, J., and released on February 6, 1984.